Against Interpretation as an Alternative to Invalidation: A Response

Date01 June 2020
Published date01 June 2020
AuthorOfer Raban
Subject MatterIn Focus: Interpretation (responding to papers in issue 48(1))
In Focus: Interpretation (responding to papers in issue 48(1))
Against Interpretation as an
Alternative to Invalidation:
A Response
Ofer Raban*
When the legislature enacts a statute that violates people’s civil rights, courts can prevent the
statute’s operation in one of two ways: they can decla re the statute to be in violation of the
constitution, or they can interpret it in a way that avoids the abusive effect. Interpretation is often
preferred, since it is seen as a more modest exercise of judicial power. Dr Stephenson argues—
counterintuitively—that interpretation may constitute a less modest exercise of judicial power, and
also that it is less transparent. The issue is one of considerable importance for all legal systems
having the power of judicial review (including the American system, which informs my personal
perspective). For the reasons explained below, I disagree with Dr Stephenson’s thesis.
I Interpretation Is Not Less Modest Than Invalidation
Dr Stephenson’s main argument is that interpretation ‘allows the judiciary to implement its pre-
ferred method for rectifying the incompatibility with rights, while invalidation typically sends the
task of rectification back to the legislature’.
Accordingly—writes Stephenson—interpretation
‘allows the judiciary to exercise a greater degree of power in relation to the operation of statutes’.
The conclusion is surprising. After all, even at its most expansive, interpretation must remain
consistent with the fundamental features of the statute. (Stephenson recognises that ‘inter-
pretation not available ...if [it] would be inconsistent with ...a “fundamental feature” of
the original statute or ...[with] “its essential principles”’.
) Invalidation, by contrast, does away
with the entire statute—fundamental features and prin ciples included. Surely that is a greater
exercise of judicial power.
The argument that with interpretation ‘the legislature does not even have to worry about
deciding what to do...because the judiciary will take care of the task of rectification’ adds little
* Professor of Law and Elmer Sahlstram Senior Fellow in Trial Law, University of Oregon School of Law. JD Harvard Law
School, D Phil, Oxford University. The author may be contacted at
1. Scott Stephenson, ‘Against Interpretation as an Alternative to Invalidation’ 2020 48(1) Federal Law Review 46, 65.
2. Ibid.
3. Ibid 50.
Federal Law Review
2020, Vol. 48(2) 272–275
ªThe Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0067205X20906039

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT